Juma Kombo vs Republic (Criminal Appeal No. 899 of 2023) [2025] TZCA 1096 (13 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: KOROSSO, 3.A.. KENTE. J.A. And KHAMIS, J.A.l CRIMINAL APPEAL NO. 899 OF 2023 JUMA KOMBO............... ................................................................ APPELLANT VERSUS THE REPUBLIC............................................................................ RESPONDENT (Appeal from the decision of the Resident Magistrate's Court of Mwanza at Mwanza) (Ndvekobora - PRM with Ext. Jurisd.) dated the 27th day of November, 2023 in Criminal Appeal No. 31 of 2023 JUDGMENT OF THE COURT 1st & 13th October, 2025 . . . . . • KENTE, J.A.: This appeal is against the decision of the Resident Magistrate's Court of Mwanza (Ndyekobora - PRM. Ext. Jurisd.) in Criminal Appeal No. 31 of

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2023. Initially, the appellant as accused, appeared before the District Court of Sengerema (the trial court), where he was charged with unnatural offence contrary to section 154 of the Penal Code, Chapter 16 of the Revised Laws. 1

The particulars of the offence alleged that, the appellant on 21st November 2021 at Nyantukala Village within Sengerema District in Mwanza Region, had sexual intercourse with the complainant, an eight- year-old girl, per anus. The appellant pleaded not guilty to the charge but after a full trial, he was convicted and sentenced to the mandatory life imprisonment sentence. His appeal to the first appellate court was in vain, hence this appeal. As is apparent, the complainant in this matter is a minor. Because of this, we will hereinafter refer to her interchangeably as the complainant, the victim or PW3. . . . The evidence that was before the trial court showed that, the appellant was a neighbour to the complainant's family. Under those circumstances, prior to the incident, the complainant who testified as PW3 said she knew the appellant very well. She also told the trial court that, the appellant lived at her aunt's residence who had a minor child called Jona. The trial court further heard that, on some occasions, the complainant who was a child with special needs, used to wear Jona's clothes. According to the complainant, on the fateful day,' she came home from the church at about 4.00 pm and, went to her aunt's residence with a view to wearing Jona's clothes as was the norm. That, while she was

there, the appellant called her over into his sitting room and ordered her to remove her knickers and bend towards the sofa. Having undressed himself, the appellant went on having anal intercourse with her. The complainant told the trial court that, during and after the assault, she felt pains for which the appellant told her to smoothen herself with body oil as a softener. When she went home and did so, her father (PW4) who saw. her became doubtful of her odd acts and informed his wife, the complainant's mother (PW1) who had already left for her business. Asked why she did not quickly tell her mother what had happened to her on the very day of the assault,, the complainant told the trial court that, after the appellant assaulted her' he threatened to kill her if ever she told her mother or anyone what had happened to her. According to PW1, having received the disturbing information from her husband and after returning home, she examined her daughter where upon she discovered that her anus was unusually open and surrounded by some visible bruises. When she asked the complainant as to what had befallen her, she (the complainant) was at first hesitant about disclosing the ordeal she had gone through. According to PW1, however on being pressed, the complainant told her confidently that it was the appellant who had molested her. PW1 further testified that, taking the allegations

by their daughter seriously, she and her husband (PW4) reported the incident to a local leader who referred them to the Police Station at Sengerema. From the Police Station, the complainant was taken to the Sengerema District Hospital and examined by a medical doctor (PW6). The medico-legal report which was admitted into evidence as Exhibit PI revealed that, the complainant's anal sphincter muscles were unusually loose. The repprt also revealed that the area surrounding the complainant's anus was reddish signifying she had!.recently sustained wounds. PW6 concluded that the injuries sustained by the complainant were consistent with penetration into her-anus by a blunt object most likely in the.course of a forceful penile penetration. On the basis of the foregoing evidence, the appellant, who throughout the trial protested his innocence raising an alibi, was convicted as charged and sentenced to life imprisonment oh account that he had on the material day, unlawful intercourse with the complainant against the order of nature. As we have said, the appellant's appeal to the High Court which was subsequently transferred to the Resident Magistrate's Court of Mwanza to be heard by a Resident Magistrate with Extended Jurisdiction, was found wanting,in merit^and consequently dismissed, ' . • ■ . 4 ' • • •

Like the trial Magistrate, the learned Principal Resident Magistrate of the first appellate court-accepted the evidence that, on the material day, the appellant took the complainant into his room where he went on to have anal intercourse with her. She found the evidence of the complainant to be both credible and impeccable and further corroborated by the evidence of medical expert which established beyond doubt, that the victim had been violated. The learned Principal Resident Magistrate disbelieved the appellant's defence of alibi holding that it was inconsistent with the testimony of the complainant which strongly implicated him. The learned Principal Resident .»< 2 J 4 . • . . vw-fjr.t ' { v s \ ■ . i Magistrate also discounted the appellant's complaint that he was not properly identified as the perpetrator of the subject offence. Proceeding from the premise that the appellant and the.complainant were familiar to each other and the offence was committed in broad daylight, the learned Principal Resident Magistrate found that it was easy fpr the complainant to recognise the appellant as the assailant and that, in any case, she could not mistake him. for another person. . > : ■- ‘ ! i Before this Court, the appellant has presented several grounds of appeal most of which are either, in relation to factual:matters that were conclusively determined by the lower courts or are irrelevant and 5

inconsequential because of a seemingly faulty understanding. However, if we can distill from the appellant's generalized complaints, the most important questions for us to resolve in this appeal fall essentially on the following three vital points: One; whether the appellant was properly identified as the complainant's molester, two; whether the medicolegal report (Exh. PI) was read out to the appellant after being admitted in evidence as required by law to apprise him of its material contents and finally, is the general question as to whether the charge against the appellant was proved to the required standard as to warrant a conviction. Notably, the appellant who appeared before us in person without ^ t S * , - . " ■ , ■ ■ T t v M -.f y ; 1 7 . ■ v* any legal representation, fending for himself, had nothing meaningful to say in substantiation of his grievances with the concurrent decisions of the lower courts. On being called upon to address the Court, he simply adopted his grounds of appeal and urged us to allow the appeal and, respectively quash and set aside the conviction and sentence imposed on him allegedly for being founded on insufficient evidence. In opposition to the appeal, Ms. Jaines Kihwelo, learned State Attorney who was assisted by Mr. Adam Murusuri and Ms. Hellen Mabula, both learned State Attorneys appearing for the respondent-Republic, submitted correctly so in our view that, the complaint that the appellant

was not properly identified as the complainant's molester because of lack of evidence, regarding the source and intensity of light at the scene of the crime to establish the conditions under which the identification was made, was baseless as-the subject offence was committed in .broad daylight after the victim returned home from the church. Referring to the complainant's testimony, the learned State Attorney submitted that, since the offence was committed .at about 5.00 pm, it was not necessary for the prosecution to lead evidence regarding the source and intensity of light to confirm the testimony of the witness and ensure the reliability of her identification of the appellant. To that end, the learned State Attorney concluded that, the identity^ the appellant was^stablished beyond doubt as to eliminate the danger of false implication.. We have examined the evidence on record, the lower courts' evaluation of the said evidence and the concurrent decisions of the trial and the first appellate court. We must say from the outset that, we cannot agree more with the appellant's seeming position that, in any criminal incident, good lighting is essential for witnesses to accurately identify the perpetrator of such a crime. Because of this, evidence of the light's source and intensity is invariably necessary to help the court assess and determine whether the lighting conditions were sufficient for clear visual 7

identification of a criminal suspect. However, we wish to quickly observe that, while we are mindful of the vagaries of eye-witness identification, given the particular circumstances obtaining in the instant case, there can be no doubt that the appellant was impeccably identified by the complainant as a. perpetrator of the charged offence. Apart from the fact that the offence was committed in broad daylight as to eliminate all possibilities of misidentification, not much turns around the fact that prior'to the incident, the complainant and the appellant were familiar to each other and, what's more, the above evidence does not exist in isolation. Evidence is clear that the appellant lived in the neighbourhood, of the complainant's parents. Moreover, regard is had to the fact that the complainant had imniediately named the appellant to her mother when she was asked to name -her assailant. In our view,, the cumulative effect of the above enumerated facts and circumstances are such as to lead to the conclusion that indeed the appellant was properly identified. Otherwise, to suggest that this was a possible case of a mistaken identification as the appellant would want us to believe, is^in our ,view, a conjecture and fanciful argument. It .is for this reason that the concurrent findings by the lower court regarding the fact that the 8

appellant was positively identified as the complainant's assailant cannot be disturbed. The complaint relating to the question as to whether the medicolegal report (Exh. PI) was read out in court after being admitted in evidence as required by law, remains to be considered next. On this question, the nub of the appellant's complaint before this Court is that, whereas it is on the record that after the medicolegal report was formally admitted into evidence and PW6 was allowed to read it out, the record is silent as to whether PW6 went on reading out the material contents of the said report. As we reckoned it, the appellant's argument is that, it was one thing for PW6 to be allowed by the trial court to read out the contents of Exhibit PI but quite another thing to really read it out. For this reason, the appellant implored us to find that the medicolegal report was not read over to apprise him of its contents and, consequently expunge it from the record. With due respect, we‘do not subscribe to the appellant's tenor of argument. Instead, like the learned Principal Resident Magistrate of the first appellate court, we are’disposed to share and indeed we cannot agree any further with M s.- Kihwelo's view that, after being admitted into evidence, the contents of Exh. PI were read over to the appellant who

immediately thereafter, went on confronting PW6 with very pertinent questions which were basically derived from the said report and PW6's oral testimony. In this regard, it occurs to us that while we have no quarrel with the fact that, one may have some reservations with the learned trial magistrate's mode of recording the proceedings, we take the view that arguing that for PW6 to be allowed by the court to read out the contents of Exh. PI is quite different from reading it out as the appeljant contended, may seem like hair-splitting, an exercise from which we refrain to indulge ourselves. Much has been said but with the advent of the overriding objective principle in the administration of justice,...it only merits a repetition to say that the courts of. law in Tanzania are now required to be more focussed on the overall requirement ta do justice than undue adherence to procedural -technicalities. Having concluded and observed in the foregoing manner, it follows that the holding by the first appellate court that the material contents of the medicolegal report were read over to the appellant immediately after it was admitted in evidence, cannot be faulted. We are thus satisfied that the learned Principal Resident Magistrate was justified and she did not misdirect herself nor err in accepting the evidence contained in the said 10

report. In view of the above observation, we find no merit in the . r appellant's second ground or appeal and, we dismiss it. There being ample evidence which implicated the appellant particularly the evidence of the victim, we find no merit in the appeal which we accordingly dismiss in its entirety. We uphold both the conviction and the sentence. DATED at MWANZA this 11th day of October, 2025. W. B. KOROSSO JUSTICE OF APPEAL _ P. M. KENTE JUSTICE OF APPEAL A S. KHAMIS JUSTICE OF APPEAL Judgment delivered this 13^ day of October, 2025 in the presence of the appellant in person and Mr, Ibrahim Salim, learned State Attorney for the Respondent/Republic and Miss Harida Hamisi, the Court Clerk; is hereby certified as a true copy of the original.